Can a lawyer hired by a conservator to sue for the ward also help the conservator fight the ward's petition to dissolve the conservatorship?

Plain-English summary

Co-conservators hired Lawyer L to bring an accounting action on behalf of an elderly, incapacitated ward against third parties. The ward opposed the action, sided with the third parties, and hired separate counsel (Lawyer B) to petition the probate court to dissolve the conservatorship and remove the conservators, who opposed that petition. The question was whether the conservators or Lawyer L had a conflict that prevented them from opposing the ward's petition.

The committee first set aside the substantive-law question of whether a conservator may oppose such a petition, noting it does not opine on substantive law and that a negative answer would moot the ethics question. Assuming the conservator could oppose, the committee analyzed Rule 1.7 against the backdrop of Rule 1.14 (client under a disability). Under South Carolina law the ward is considered the lawyer's client, but once a conservator is appointed the lawyer ordinarily looks to the representative for decisions, recognizing that representative and ward may disagree. The committee reasoned that filing the accounting action at the conservator's direction would normally not create an impermissible conflict even over the ward's objection, and that a conservator, who serves as a fiduciary and must act only in the ward's best interests, may take positions different from the ward's wishes that are nonetheless consistent with the ward's interests. Comparing the situation to a lawyer who under Rule 1.14(b) may petition to create a conservatorship for a client without having to withdraw, the committee concluded it was not inherently improper for the lawyer later to defend the conservatorship against the ward's challenge. At least as long as Lawyer L had no reason to believe the conservator had breached a fiduciary duty, participation in the second proceeding was consistent with, rather than adverse to, the first representation, and the ward was not left without a voice, having retained separate counsel.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a conservator's lawyer oppose the ward's petition to dissolve the conservatorship?

A: The committee concluded yes, assuming substantive law allows the conservator to oppose, so long as the conservator acts consistently to protect the ward's interests and has not breached a fiduciary duty.

Q: Isn't the ward the lawyer's client, making this a conflict?

A: The ward is treated as the client, but the committee said that once a conservator is appointed the lawyer ordinarily looks to the conservator for decisions, and a conservator may take positions contrary to the ward's wishes that still serve the ward's best interests.

Q: What would change the answer?

A: The committee said that if Lawyer L had reason to believe the conservator had breached a fiduciary duty to the ward, the analysis would differ; absent that, the second representation was consistent with the first.

Background and rules framework

The opinion applied Rule 1.7 (conflict of interest, current clients) and Rule 1.14 (client under a disability), which correspond to like-numbered Model Rules. Rule 1.14 treats the disabled person as a client while directing the lawyer to look to an appointed representative for decisions, and Rule 1.14(b) permits a lawyer to seek appointment of a guardian or conservator.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: a lawyer shall not represent a client where the representation is directly adverse to, or materially limited by duties to, another client, absent the rule's conditions.
• South Carolina RPC 1.14 / Model Rule 1.14: client under a disability; the lawyer maintains a normal relationship as far as possible and looks to an appointed representative for decisions.

Statutes:

• S.C. Code Ann. Section 62-5-417 (conservator serves in a fiduciary capacity).

Cases:

• Brode v. Brode, 298 S.E.2d 443 (S.C. 1982), the lawyer should rely on directions of the representative regarding matters within the scope of the conservatorship.

See also

• SC Bar Ethics Op. 93-04: A Power of Attorney and a Client's Will
• SC Bar Ethics Op. 93-19: Suing a Brief Former Client
• SC Bar Ethics Op. 93-22: County Prosecutor as Defender

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-06/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-06

Co-conservators employed Lawyer L to commence an accounting action which is now pending on behalf of the ward against several third parties. The ward is an elderly individual who has been declared incapacitated by the Probate Court. The ward is not pleased that the accounting action has been brought and supports the position of the third parties. The ward has now hired Lawyer B to petition the Probate Court to dissolve the conservatorship and dismiss the conservators. The conservators oppose the petition to dissolve the conservatorship.

Issue:
Do the conservators or Lawyer L have a conflict of interest that would prevent them from opposing the petition brought by the ward?

Summary:
A lawyer who brings an action on behalf of a ward at the direction of the conservator may simultaneously assist the conservator in opposing a motion filed by the ward to dissolve the conservatorship, insofar as the conservator is acting consistently in each proceeding to protect the interests of the ward.

Opinion:
Whether a conservator may oppose a petition by the ward to dissolve the conservatorship is a question of substantive law. This Committee is not in a position to render an opinion on that issue. If the answer is negative, then the ethical inquiry becomes moot. If under substantive law, however, the conservator is permitted to oppose the petition, we then must consider the ethical question of whether a lawyer hired by the conservator to pursue an accounting action on behalf of the ward simultaneously may assist the conservator in opposing the ward's petition to dissolve the conservatorship.

We begin by analyzing the relationship between the lawyer and the ward in the accounting action. Under the facts as presented, the lawyer was hired by the conservator for the purpose of protecting the interests of the ward. Under South Carolina law, it appears that in such a situation, the ward is considered to be a client of the lawyer. "Even if the person does have a legal representative, the lawyer should as far as possible accord the represented person the status of client." Comment, Rule 1.14.

Once a conservator has been appointed, however, "the lawyer should ordinarily look to the representative for decisions on behalf of the client." Comment, Rule 1.14; Brode v. Brode, 298 S.E.2d 443 (1982) (citing similar language in EC 7-12 under the prior Code of Professional Conduct). The requirement that the lawyer should rely on directions of the representative rather than of the ward regarding matters within the scope of the conservatorship implicitly recognizes that the representative and the ward may not always agree upon how legal matters are to be handled. In such situations, the lawyer must have some clear source of authority upon which to rely, and the ethics rules provide that it is the representative who directs the lawyer in such situations. We conclude, therefore, that the filing of litigation on behalf of the ward at the direction of the conservator would normally not create an impermissible conflict for the lawyer, even if the ward expresses contrary wishes.

The question then is whether a conflict arises in the peculiar situation in which the ward not only objects to the conservator's action, but takes the additional step of seeking the removal of the conservator and the dissolution of the conservatorship. The conservator wishes to employ Lawyer L for purposes of opposing that petition to dissolve. The ethical concern raised by that particular circumstance is that the conservator and the ward have taken directly conflicting positions in court. Can the lawyer who currently is representing the interests of the ward at the direction of the conservator directly oppose a petition by the ward challenging the conservator's continued authority without violating Rule 1.7?

The Comment to Rule 1.14 explicitly recognizes that there are varying degrees of incompetence. A person for whom a conservator has been appointed may continue to entertain a strong interest in his or her own affairs and may express clear views as to the manner in which the conservator acts. In those cases, the conservator may be placed at odds from time to time with the expressed wishes of the ward. A conservator, however, is not expected always to act as the ward would direct. It is precisely the inability of the ward to handle certain affairs adequately that necessitates the appointment of a conservator.

Thus, actions by the conservator different from the desires of the ward may well be consistent with, rather than adverse to, the best interests of the ward. It is important to remember that a conservator does serve in a fiduciary capacity, S.C. Code Ann. Section 62-5-417, and must act as conservator only in the best interests of the ward at all times. Therefore, if the law allows a conservator to oppose a ward's petition to dissolve, the conservator may do so only when the conservator believes that the interests of the ward would be best served by continuation of the conservatorship. An appreciation of the special protective function of the conservator-ward relationship is important when evaluating whether a lawyer's appearance in opposition to a petition by the ward is, in fact, impermissibly adverse to the interests of the ward. It is also useful to compare the circumstances of this inquiry with the situation in which the lawyer initiates the appointment of a conservator. At some point in a representation, a lawyer may come to the reasonable belief that the client no longer can adequately act in his or her own best interest and that a representative needs to be appointed for the client. Rule 1.14(b) expressly authorizes the lawyer at that time to seek the appointment of a guardian or conservator to protect the interests of the client even though, in the words of the Comment to Rule 1.14, the experience may be "traumatic for the client." We find nothing in the rules requiring the lawyer, then to withdraw as attorney for the client.

If the lawyer, while acting as attorney, can directly petition to create a conservatorship for the client, we do not believe it is inherently improper for the lawyer later to defend the continuation of that relationship against a challenge by the ward. In the specific situation presented, the conservator has acted to protect the interests of the ward through the filing of an accounting action against third persons. The conservator has then attempted to protect that action by opposing the ward's subsequent petition to dissolve the conservatorship. At least as long as the lawyer has no reason to believe that the conservator has breached a fiduciary duty to the ward, Lawyer L's participation in the second proceeding is, in actuality, consistent with the first representation, rather than adverse. We note also that the ward has not been left without a voice for his or her position, since the ward has obtained separate legal counsel.